01-27829. Approval and Promulgation of Implementation Plans; Wisconsin

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is approving revisions to the minor source/minor modification pre-construction permitting requirements for Wisconsin Electric Power Company's (WE's) Pleasant Prairie Power Plant. The Pleasant Prairie Power Plant is located in Kenosha County at 8000 95th Street, Pleasant Prairie, Wisconsin. The Wisconsin Department of Natural Resources (WDNR) submitted the revised requirements on February 9, 2001, as amendments to its State Implementation Plan (SIP). The revisions include the expansion of the State's general construction permit exemption to include certain activities at the Pleasant Prairie facility.

DATES:

This rule is effective on January 7, 2002, unless EPA receives relevant adverse written comments by December 10, 2001. If adverse comment is received, EPA will publish a timely withdrawal of the rule in the Federal Register and inform the public that the rule will not take effect.

ADDRESSES:

You should mail written comments to: Robert Miller, Chief, Permits and Grants Section MI/MN/WI, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604.

You may inspect copies of the State submittal and EPA's analysis of it at:

Permits and Grants Section MI/MN/WI, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT:

Robert Miller, Chief, Permits and Grants Section MI/MN/WI, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, [phone].

SUPPLEMENTARY INFORMATION:

Throughout this document wherever “we”, “us”, or “our” is used we mean EPA.

Table of Contents

I. What is the EPA approving?

II. What are the changes from current rules?

III. What are the environmental effects of this action?

IV. EPA rulemaking action.

V. Administrative requirements.

I. What Is the EPA Approving?

We are approving revisions to the minor source/minor modification pre-construction permitting requirements for Wisconsin Electric Power Company's (WE's) Pleasant Prairie Power Plant located at 8000 95th Street, Pleasant Prairie, Wisconsin. WDNR submitted the revised requirements on February 9, 2001, as amendments to its SIP. The WDNR held a public hearing on the proposed revisions on January 22, 2001.

The revisions include the expansion of the State's general construction permit exemption to include certain activities at the Pleasant Prairie facility. This SIP revision will not have an adverse effect on air quality.

II. What Are the Changes From Current Rules?

The WDNR has submitted a portion of the Environmental Cooperative Agreement signed by WDNR and WE on February 5, 2001, for approval into the SIP. The Environmental Cooperative Agreement was developed pursuant to the Environmental Cooperative Pilot Program authorized under Section 299.80, Wis. Stats. The Environmental Cooperative Agreement replaces the general construction permit exemption at NR 406.04(2) with the requirements of Section XII.C, Item “Construction Permit Exemption for Minor Physical or Operational Changes,” of the Environmental Cooperative Agreement. This change applies only to the Pleasant Prairie Power Plant. The provisions of NR 406.04(2) remain in effect for all other facilities within the State of Wisconsin.

The revisions differ from the current requirements in several significant ways:

1. The current exemption cannot by used by any facility subject to a New Source Performance Standard (NSPS). The Pleasant Prairie Power Plant has two units subject to an NSPS.

2. The current exemption threshold for nitrogen oxide ( NO_X) emissions is 5.7 pounds per hour. The revision increases the threshold to 9.0 pounds per hour (approximately 39.42 tons per year) of NO_X.

3. The current regulations at NR 406.04(2) do not require a source to notify WDNR and EPA of changes that qualify for the exemption prior to making the changes or to perform an ambient air quality analysis for those changes. The revisions do require pre-construction notification and an air quality analysis.

III. What Are the Environmental Effects of This Action?

This action will exempt physical changes or changes in the method of operation at the Pleasant Prairie Power Plant with potential emissions less than 9.0 pounds per hour (39.42 tons per year) for sulfur dioxide, carbon monoxide, or NO_X; 5.7 pounds per hour (24.97 tons per year) of particulate matter or volatile organic compounds; 3.4 pounds per hour (14.89 tons per year) of particulate matter less than 10 microns in diameter; and 0.13 pounds per hour (0.57 tons per year) of lead from the requirement to obtain a permit prior to commencing construction on the physical changes or on changes in the method of operation. The current rules contain a similar exemption for certain sources; however, this exemption cannot be used by the Pleasant Prairie Power Plant because it is subject to an NSPS.

The general exemption in the current rule does include a threshold of 5.7 pounds per hour for NO_X because it can be applied in areas with a lower significance threshold such as severe ozone non-attainment areas. For the area in which the Pleasant Prairie Power Plant is located, the significance threshold is 40 tons per year (approximately 9.13 pounds per hour). Although the current rules do require receipt of a construction permit prior to making changes for the Pleasant Prairie Power Plant, issuance of the permit will not result in any additional pollution control requirements or lower emission limitations. The revision is procedural and has no direct impact on emissions.

Under the current rule, an air quality analysis is required for physical changes or changes in the method of operation as part of the pre-construction permitting process to ensure that no applicable standards are violated. The revisions have maintained this requirement. The Pleasant Prairie Power Plant must notify WDNR and EPA of all modifications made under the exemption, and they must include a summary of air quality impacts including any ambient air quality modeling performed as part of that notification.

The applicability provisions and requirements of the current operating permit regulations are unchanged. Any physical change or change in the method of operation at the Pleasant Prairie Power Plant triggering these requirements must obtain the required permit prior to commencing operation.

IV. EPA Rulemaking Action

We are approving, through direct final rulemaking, revisions to the minor source pre-construction permitting requirements for the WE Pleasant Prairie Power Plant, located in Kenosha County at 8000 95th Street, Pleasant Prairie, Wisconsin. We are publishing this action without prior proposal because we view this as a noncontroversial revision and anticipate no adverse comments. However, in a separate document in this Federal Register publication, we are proposing to approve the SIP revision should adverse written comments be filed. This action will be effective without further notice unless we receive relevant adverse written comment by December 10, 2001. Should we receive such comments, we will publish a final rule informing the public that this action will not take effect. Any parties interested in commenting on this action should do so at this time. If no such comments are received, this action will be effective on January 7, 2002.

V. Administrative Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by Section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective January 7, 2002 unless EPA receives adverse written comments by December 10, 2001.

Under section 307(b)(1) of the Clean Air Act, 42 U.S.C. 7607, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 7, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See Section 307(b)(2).)

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Review of New Sources and Modifications
• Incorporation by reference
• Intergovernmental relations
• Reporting and recordkeeping requirements

Dated: September 10, 2001.

David A. Ullrich,

Acting Regional Administrator, Region 5.

For the reasons stated in the preamble, part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

PART 52—[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart YY—Wisconsin

2. Section 52.2570 is amended by adding paragraph (c)(102) to read as follows:

§ 52.2570

Identification of plan.

* * * * *

(c) * * *

(102) On February 9, 2001 the Wisconsin Department of Natural Resources submitted a site specific SIP revision in the form of a February 5, 2001 Environmental Cooperative Agreement for incorporation into the federally enforceable State Implementation Plan. The Cooperative Agreement establishes an exemption for pre-construction permitting activities for certain physical changes or changes in the method of operation at the Wisconsin Electric Power Company, Pleasant Prairie Power Plant located at 8000 95th Street, Pleasant Prairie, Wisconsin. This Environmental Cooperative Agreement expires on February 4, 2006.

(i) Incorporation by reference.

The following provisions of the Environmental Cooperative Agreement between the Wisconsin Electric Power Company and the Wisconsin Department of Natural Resources signed on February 5, 2001: The provisions in Section XII.C. Permit Streamlining concerning Construction Permit Exemption for Minor Physical or Operational Changes. These provisions establish a construction permit exemption for minor physical or operational changes at the Wisconsin Electric Power Company Pleasant Prairie Power Plant. This Environmental Cooperative Agreement expires on February 4, 2006.